Chemical Industry’s War on Science Gains Support of Christie’s DEP

The procedures in EO#2 and the bill are explicitly intended to “reduce regulatory burdens” of existing rules and “to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted.”

[* Intro note – please hit the comment button in the upper right corner to read a superb comment by my good friend Bill Neil that situates this debate in the proper historical, political, and ideological context.]

At yesterday’s Assembly Environmental Committee hearing on the DWQI/risk assessment kill bill (A2123),Hal Bozarth of the NJ Chemistry Council rejected criticism that the bill was really about “stacking the deck” and weakening public health and environmental standards.

Instead, Bozarth claimed it was all about using the best science and “regulatory reform” – and to make the bill appear mainstream, he mentioned that it was related to a national debate on EPA’s “Integrated Risk Information System” (IRIS). NJ Spotlight:

Beyond adding the three members, others said proposed changes in how the institute can make recommendations for tougher water standards will cripple its efforts even more.

Bill Wolfe, director of the New Jersey Public Employees for Environmental Responsibility, said the bill would also change how the institute develops risk assessments. He contends those changes could make it more difficult for the institute to adopt tough standards for various chemicals.

“It may not result in a regulatory change, but it is clearly a scientific change,’’ Wolfe told the panel.

Bozarth disputed that notion, saying the changes proposed by the bill are similar to ones already endorsed by the U.S. Environmental Protection Agency.

So, to expose those lies, below I discuss the origin of the bill and the NJ and national context for the debate Bozarth himself highlighted.

NJ Context

First of all, make no mistake, the bill is not about regulatory reform. It is about providing “regulatory relief” and blocking new regulations, as mandated under Governor Christie’s Executive Order #2.

The purpose of EO#2 is clear: to provide regulatory relief and to prevent new regulatory burdens.

The terms of EO #2 expose the fact that the Burzichelli bill implements the purposes of EO #2 and is designed to provide regulatory relief. EO #2 states:

1. For immediate relief from regulatory burdens, State agencies shall:

a. Engage in the “advance notice of rules” by soliciting the advice and views of knowledgeable persons from outside of New Jersey State government, including the private sector and academia, in advance of any rulemaking to provide valuable insights on the proposed rules, and to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted.

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3. For long-term relief from regulatory burdens, State agencies shall:

a. Draft all proposed rules and processes so that they promote transparency and predictability regarding regulatory activity, consistency of business regulation within the State, appropriate flexibility, and a reasonable balance between the underlying regulatory objectives and the burdens imposed by the regulatory activity.

The sponsor of the bill, Assemblyman Burzichelli, is the Christie Administration’s legislative point man on the “red tape” and “regulatory relief” policy.

The bill has nothing to do with science and everything to do with economic and political power – it is the outcome of the chemical industry working with the Governor’s Office and DEP Commissioner, who supports the bill, has prohibited the DWQI from meeting, and has blocked all new DEP regulations.

Burzichelli’s bill would provide regulatory relief by implementing the policies and procedures in Gov. Christie’s Executive Order #2.

The procedures in EO#2 and the bill are explicitly intended to “reduce regulatory burdens” of existing rules and “to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted.”

The appointment of 3 chemical industry representatives on the DWQI would allow industry to “provide valuable insights”; to “engage in advance notice”; and “to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted.”

The requirements of Section 3 of the bill that – prior to the initiation of any risk assessment or standards development work – that DEP

develop, and make available to the public on its Internet website, a prioritized workplan, which shall include, but need not be limited to, the tasks, priorities, and a schedule or the dates of action and votes.

also would implement the policy of EO #2 and allow that

“the private sector , in advance of any rulemaking to provide valuable insights on the proposed rules, and to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted. “

Similarly, the “call for information” process and requirements in Section 3 provide industry with the same tools “to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted.”

Prior to the department adopting any chemical risk assessment, including any guidelines or policies for evaluating the toxicity of chemicals or health evaluation of a chemical that will be used in the regulatory process, the department shall first send out to the general public, via electronic correspondence and on the department’s Internet website in addition to any other appropriate means, a call for information on the chemical or chemicals of concern.

Section 3 of the bill would limit the science that DEP may consider:

the department shall evaluate all the submissions that meet and comply with good laboratory practices standards and quality standards.

New Jersey uses the same scientific methodology as the U.S. Environmental Protection Agency and EPA does not exclude non-GLP studies; and

GLP, as its name imply, refers to laboratory studies which excludes human epidemiology studies as well as many other studies of similar or superior scientific value. Epidemiological studies, in fact, are even more relevant for risk assessment than GLP studies.

The development of government public health and environmental standards is inherently an adversarial process.

Contrary to DEP Commissioner Martin’s mandate on DEP’s “culture”,the chemical industry is not “DEP’s customer” in this regard and their “science” is tainted by conflict of interests and lacks basic elements of scientific integrity – independence, objectivity, and disinterest in outcomes.

Football fans out there would understand the implications of a requirement that prior to the snap, the quarterback must consult with the middle linebacker to discuss the play selection.

Baseball fans too: prior to the pitch, the catcher shall consult with the batter to disclose the pitch selection.

National Context

Most recently, the obvious example is the Republican view that global warming science is a hoax. But for a long time, Republicans have been waging a War on Science (title of a 2005 book)

In this eye-opening expose, David Michaels reveals how the tobacco industry’s duplicitous tactics spawned a multimillion dollar industry that is dismantling public health safeguards. Product defense consultants, he argues, have increasingly skewed the scientific literature, manufactured and magnified scientific uncertainty, and influenced policy decisions to the advantage of polluters and the manufacturers of dangerous products. To keep the public confused about the hazards posed by global warming, second-hand smoke, asbestos, lead, plastics, and many other toxic materials, industry executives have hired unscrupulous scientists and lobbyists to dispute scientific evidence about health risks. In doing so, they have not only delayed action on specific hazards, but they have constructed barriers to make it harder for lawmakers, government agencies, and courts to respond to future threats.The Orwellian strategy of dismissing research conducted by the scientific community as “junk science” and elevating science conducted by product defense specialists to “sound science” status also creates confusion about the very nature of scientific inquiry and undermines the public’s confidence in science’s ability to address public health and environmental concerns.

Such reckless practices have long existed, but Michaels argues that the Bush administration deepened the dysfunction by virtually handing over regulatory agencies to the very corporate powers whose products and behavior they are charged with overseeing.

In Doubt Is Their Product Michaels proves, beyond a doubt, that our regulatory system has been broken. He offers concrete, workable suggestions for how it can be restored by taking the politics out of science and ensuring that concern for public safety, rather than private profits, guides our regulatory policy.

The bill would inject even more politics into science and provide numerous opportunities and incentives for industry to wage exactly this kind of war on public health and environmental protections.

The Burzichelli bill also would inject additional delay in an already onerous process. The Natural Resource Defense Council (NRDC) issued an excellent Report on that industry strategy, sees:

Mr. Chairman, Ranking Member Edwards, and members of the Subcommittee, I appreciate the opportunity to testify before you today on one of the Environmental Protection Agency’s (EPA) most important and foundational programs, the Integrated Risk Information System (IRIS). Let me get straight to the point. These days, the more important a public health program, the more likely it is to be the subject of relentless, intemperate, and unjustified attacks. IRIS is no exception. What is in fact a sober, well-informed, and carefully conducted scientific effort to synthesize existing research in order to set reference doses for the most toxic chemicals is portrayed by industry lobbyists as an anti-scientific effort to “demonize” such ostensibly benign substances as arsenic, formaldehyde, and dioxin. This deliberate misreading of the science by industry lobbyists is intended to prolong Americans’ exposure to dangerous substances in the service of corporate profit, while at the same time immobilizing the federal agency best qualified to protect public health, the EPA.

My testimony today makes four points about the future of the IRIS program:

From the American public’s perspective, the central and urgent problem with IRIS is not that it rushes to judgment on toxic chemicals. Far from it. The problem is that repeated rounds of redundant “peer review” and interagency comment allow – in fact, invite –chemical manufacturers, the Department of Defense, and other self- interested parties to slow the program to a crawl. Because these delays help to ensure that dangerous chemicals are left in commerce for years longer than necessary, people suffer avoidable diseases and irrevocable neurological and reproductive damage. The Government Accountability Office (GAO) has repeatedly warned Congress about the negative implications of these delays. See, e.g., GAO-08-6743T, EPA’s New Assessment Process Will Increase Challenges EPA Faces in Evaluating and Regulating Chemicals (April 29, 2008) and GAO-09-271, HIGH-RISK SERIES, An Update (January 2009). GAO has placed the EPA chemicals program in the “high risk” category reserved for a small number of the most troubled programs in government. It made this important decision in part because IRIS updates are so slow that the data base risks becoming obsolete. It did not make any reference to the distorted critique of EPA science that the chemical industry has developed.

Given that IRIS is constantly struggling to avoid capture by the chemical industry and, if anything, gives manufacturers far too many opportunities to befuddle final assessments, the chemical industry’s sudden discovery of its flaws is as opportunistic as it is incredible.

The National Research Council’s (NRC) report on formaldehyde does not justify the radical changes sought by the industry. In fact, the NRC explicitly endorsed the program’s continuation and improvement. Its critique of the formaldehyde assessment constitutes robust peer review, not an outright condemnation of the program and EPA science as industry witnesses would have you believe. I wish that the NRC committee had not adopted such a haughty tone in scolding EPA staff. But that tone was the product of political naiveté regarding how its report would be exploited in the existing political climate. It cannot fairly be characterized as a recommendation that IRIS stop—or even slow—its critical work.

• The remedies sought by the American Chemistry Council (ACC) are designed to run IRIS off the road, further undermining EPA’s mission to protect public health. I urge the Committee to side with the public, not the manufacturers of toxic chemicals long overdue for assessment and control.

Well Bill, here I am again. I’m thinking about your last two posts, and have to defer to you on the details, intrigue and ideological direction.

As you already know, I’ve been reading over the past few months about the history of the “Atlantic repubican tradition,” which sounds abstract, but just think of it more than partly the ideas “lying around” which the founders of the American republic drew upon in setting up a new government, one that had the difficult task of distinguishing itself from what the world then considered to be the most advanced, modern government – Great Britain – in the world’s most advanced economy.

At the center of the debate was how to preserve the public interest – the word often used was virtue – from the corrpution of special and private interests. As I know you know, because we’ve talked about it, many of the founders were from what they hoped would be viewed as a “natural aristocracy,” based on a large land ownership – slaves – in some cases – which allowed them, in their view, with a lot of classical history on their side – to proclaim that they had the leisure, learning and distance from the vulgar (in their view) world of special commercial interests…now this sounds rather dubious to modern ears, that these founders thought they were not a special interest and that they could set up a government of check and balances that would largely elect people like themselves to govern, both in the legislative chambers an in the other instruments of government they set up. They viewed (Jefferson especially) Alexander Hamilton with horror because he was the most modern in terms of economics, and wanted a professional army, central national bank and for the US to plunge directly into the competitive Atlantic trade head on against Britain, France, Spain and Holland. We know that because the US was, for its time, the most egalitarian nation in terms of land distribution and ownership – the Jeffersonian yeomanry – and the increasing commercialization of nearly all aspects of American life during the Revolution, when markets for all shorts of domestic goods were growing – that the rising tide of direct democracy – see Pennsylvania as the most cutting edge – hotly disputed the notion that these founders could be so disinterested – and the cutting edge of democracy in the 1787-1800 years demanded that the representatives going into these legislative bodies directly reflect their own special interests…they didn’t want artistocratic Philadelphians – merchants especially – to represent German farmers from the south and central parts of the state…

The thrust of all this is that it was not easy then, even when 80% of the base of the population were small to middling farmers, to find the public interest or the leaders to advance it. You can imagine the crisis when in the 1880-1890’s we looked out at the remains of Jefferson’s yeomanry through the smoke of Carnegie’s chimneys and said: what have we become…and the remaining farmers revolted…

The problem has never been solved, and over the past 30 years the Republicans explicitly, and with general Democratic Party consent, have evolved a definition, rigid and simplistic, that all that is private economics is good and virtuous, and all that is governmental (except, and it is a big exception, national defense) is bad. All aspects of their ideology reinforce this message: lower taxes, smaller government, emphasis on family life…what they don’t realize is that they have substituted for the ancient republican tradition, which placed civic man at the very center and model of life…in the smaller republic city states before empires set in (no small thing, that setting in of Empire…a whole different discussion for the US today) the deliberations of the legislative bodies were the center of life…not the commercial periphery – this civic man stretching from Greece and early Rome, to the Florentine Republic and even the more oligarchical Venice (which strived mightly in its internal meetings to balance power and interests) through to the Enlgish civil war and all that is meant by the country and Whig tradition – has been replaced by economic man and in my opinion, what you are writing about is the proof of it in New Jersey, and on the national level: the most powerful private economic interests have destroyed the concept, never easy or perfect, of the common good and the legislators and governors who will stand for it (I read a recent essay by Norman Pollack which said FDR, the wealthy Hudson River gentryman, was the last emobodiment, able to be independent and call the private interests by their proper name when they reached too far : “…and I welcome their hatred…”)

Fleshing out this logic a bit further, why not turn over all the key regulatory processes of govt over to managers who seem to know what the most powerful elements of the private sector want…objectivity and common good have been redefined…the common good in now enacted by giving big Pharma, big Defense, big Chemical…Apple!…Wall Street what they say they need: the sum of these private interests is now the common good…it has been stretched so far that even when they have given the national interest away in manufacturing (and what else in terms of knowledge?) to China, raising up a sure national challenger at all levels (something that Hamilton never would have done…choke on that Bob Rubin!~) they say it is for the benefit of our corporations and globalization is the national interest. Bill Greider, in “Who Will Tell the People,” says corporation has stepped into the governing vacum – “The Grand Bazzar” he called it – and have substitued their major directions for the common/national good. He said it more softly than that, but wrote one of the most scathing exposes of how this works in that chapter called “Citizen GE” – the irony of which rings even truer as I write about the severance of the Atlantic republican tradition built upon the civic particpation of equally situated citizens…

So in the massive way that the old Jeffersonian yeomanry did stand for the common good – always an exaggeration – but there is no comparable widespread civic or economic block which has risen to replace it – I suppose the cry of the Democrats “the hard working middle class” is it since the working class has been eliminated (not really; its numbers are now in retail…the most poorly paid sector of the economy…)but the middle class is far, far too dependent on corporate America to even begin to stand in for the old agrarian base…others would – the two parties certainly do – proclaim “Small businesses” as the saving segment of the population, but at best, they’re 15-18% of the population, and ideologically, they side with the corporate sector for keeping the min, wage low – too low to live on – and are fiercly anti-tax and anti-regulatory.

So Christie can look at the wreckage that is the NJ economy – which really has its roots in the national problems – and continue the Republican Right’s assault as outlined above – and which you fill in in so much detail. The Great Recession has not changed these dynamics; things continue to move to the Right, and in my mind, it will take a full blown Depression on the scale of the 1930’s to alter the landscape of the current political economy. Obama only makes rhetorical social democratic noises; his policy reality is moderate Republican or worse and I have three news sources which point out that his budget compared to the much demonized “Ryan Plan” leaves, after ten years, civilian spending at just about the same level as Ryan’s: 1.8% of GDP, down from the 3-4% historical norm.

So no wonder Christie doens’t have a challenger, and DEP is run as a subsidiary of the “Business Roundtable.”

And should I add what I didn’t have room to state above, which your work so well illustrates in the nj greens inability to counter Christie: if you asked what force in civil society in the America of 2012 best represents, as difficult as the question and term is, the public interest, would it not be the environmentalists, protection of the environment, and to meet the current economic crisis and global warming crisis, a Green New Deal – say wasn’t that the platform of the Green Party? Well, we all know where we stand in NJ and how the Green Party fares.

But as any honest enviro can tell – or should tell the public – at every turn, and no matter what the issue being advanced – there is a more powerful private economic interest that seized the interior lines before we got there – except maybe in the early years marking the passage of most of the major land mark pieces of legislation. Now, irony of ironies, we’re the special interest! Isn’t it interesting, for a movement that has achieved so much and has been around clearly since 1970, and arguably, before that, it has not supplied a single successful national party leader much less president…despite its good claim to better speak for the long term public good than any other faction/interest in society? But who knows, in the bad old vulgar Marxist sense, this movement doesn’t have a clear and independent economic base, as the corporate funding and desparation of all the groups to raise money shows…and under that big green umbrella are many who have allegiances to other powerful forces in society…love to hear or see Rick Engler address the question: why haven’t the greens and an admittedly down at the heels labor movement been able to newly define the public interest? Well, Rick, if you’re still around, why don’t you have a go at it?